A.O.G v S.A.J & another [2010] KECA 449 (KLR)
The bottom line
#Kenya's Court of Appeal paused orders requiring a mother and her five-year-old son to return to England, stressing that leaving Kenya could make their appeal meaningless.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, unless a stay of execution is granted, the intended appeal, if successful, would be rendered nugatory
- 3.Whether the court should grant a stay of the orders of the High Court (Rawal, J) directing the applicant and the minor child to return to England pending the hearing and determination of the appeal
Key legal issues
#Whether the intended appeal was arguable
The appeal was arguable because it raised issues concerning the provisions of the Children's Act and the fact that Kenya is not a signatory to the Hague Convention; it could not be said to be frivolous.
The court weighed counsel's rival submissions. The applicant argued that the High Court orders breached the Children's Act and that she, a Kenyan citizen who had not submitted to the English court, was being handed over to the United Kingdom. The court noted Kenya is not a party to the Hague Convention on child abduction and held that these issues would engage the bench hearing the appeal.
Whether the appeal would be rendered nugatory if the stay was not granted
If the applicant and the minor left Kenyan soil for the United Kingdom, the appeal would be rendered nugatory, since it was not clear what would happen to the Kenyan appeal while they were in England.
The High Court order required the applicant and the minor Z to proceed to England and be produced before the Family Division of the High Court of Justice. Given the acrimonious cross-border litigation, the court found the fate of the Kenyan appeal uncertain once the child and mother left the jurisdiction, making the stay necessary pending final determination.
Whether the orders of the superior court should be allowed to stand pending the appeal in a family dispute involving a young child
In a family dispute relating to a child aged 5 years, it would be inappropriate to allow the orders of the superior court to stand without the final determination of the appeal or further orders of either court.
The court emphasised the family nature of the dispute between husband and wife involving a child of the marriage. Balancing the interests of justice and the welfare of the young child, the court held that the High Court orders should not take effect before the appeal was determined, and accordingly allowed the application for stay.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the court both that the appeal or intended appeal is arguable and that, unless the order sought is granted, the appeal, if successful, will be rendered nugatory; an arguable appeal need only be one that is not frivolous, not one that must succeed.
- An arguable appeal does not mean an appeal which must succeed; all that an applicant has to show is that the appeal or intended appeal is not frivolous.
Court orders
#- 1.Stay of execution of the order of the High Court (Rawal, J) made on 17th March 2009 and all other consequential orders thereto, including any other order for the enforcement of case No. FD 08PO2541 of the High Court of Justice in England, pending the hearing and determination of the appeal (prayer 1 of the notice of motion dated 16th November 2009)
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Civil Appln. No. 15 of 2009
- Jurisdiction invoked
- Rules 5(2)(b) and 42(1) of the Court of Appeal Rules (application for stay of execution pending appeal)
Relief refused
#Any order against the affected/interested party or any relief beyond prayer 1 of the notice of motion
The court granted only prayer 1 of the notice of motion and made no other orders.
Costs
We make no orders as to costs. The High Court had also ordered 'No order as to costs with these orders.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court will grant a stay or an injunction, as the case may be if satisfied, firstly, that the applicant has demonstrated that his appeal or intended appeal is arguable; and secondly, that unless a stay or injunction is granted his appeal or intended appeal, if successful, will be rendered nugatory.
We hasten to add that an arguable appeal does not mean an appeal which must succeed. All that an applicant has to show is that his appeal or intended appeal is not frivolous
Having considered the rival arguments especially regarding the provisions of Children’s Act and the fact that Kenya is not a signatory to the Hague Convention it cannot be said that the applicant’s appeal is frivolous.
We are of the view that since we are dealing with a family dispute relating to a child aged 5 years it would be inappropriate to allow the orders of the superior court to stand without the final determination of the appeal or further orders of either this Court or the superior court.
In view of the foregoing we now grant prayer 1 of the notice of motion dated 16th November, 2009 and a reasoned ruling will be delivered on 5th February, 2010.
Issues in the judgment
#The ruling dates are internally inconsistent as to which order was made on which date: the title refers to orders of Rawal, J dated 17th and 18th March 2009, while the quoted judgment of Rawal, J is described as 'dated and delivered in Nairobi on 18th March, 2009'.
The judgment records that the reasoned ruling was to be delivered on 5th February 2010 but the order granting the stay was made on 26th November 2009, and the reasons reproduced here are dated 5th February 2010; the operative order and the reasoned decision therefore bear different dates.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "A.O.G v S.A.J & another [2010] KECA 449 (KLR)", Case Analysis (2010). Civil Application 329 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/449/eng@2010-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.